A restrictive new law that took effect this week gives plaintiffs the chance to win $10,000 or more in damages, plus attorney’s fees, even if they have no personal connection to the abortion that prompted their lawsuits. They also won’t face any risk of having to pay the defendant’s attorneys ― even if a judge dismisses a case for having no basis in evidence.
“The law doesn’t allow people who bring frivolous lawsuits to be sanctioned,” Leah Litman, assistant professor of law at the University of Michigan, told HuffPost. “The background rules of civil procedure usually allow judges to sanction people who bring frivolous lawsuits.”
The Texas law is the first of its kind to restrict abortion by letting random people file lawsuits instead of by creating criminal penalties. The Supreme Court refused to block the law on Wednesday because the case “presents complex and novel antecedent procedural questions,” which means the ban has taken effect while the legal challenges work their way through the courts.
It’s unusual for Republicans to embrace new avenues for private lawsuits, especially against doctors. Last year, for instance, then-Senate Majority Leader Mitch McConnell (R-Ky.) made liability reform his top coronavirus policy proposal, claiming that greedy trial lawyers would bury the economy in an avalanche of lawsuits.
“We are not going to let health care heroes emerge from this crisis facing a tidal wave of medical malpractice lawsuits so that trial lawyers can line their pockets,” McConnell said in May 2020.
“The Republican Party by and large strives to insulate businesses from liability,” said David Vladeck, a Georgetown University law professor who testified against McConnell’s proposal last year. “And here, they want to enlist every anti-abortionist to go out and harass people who want to get abortions.”
Prominent Republicans have so far said little about the new abortion ban. McConnell said on Thursday that the Supreme Court made “a highly technical decision.”
Republicans included tighter rules for suing medical providers in the legislation package they struggled and failed to push through Congress in 2017, and tort reform was one of their top priorities in 2009 when Democrats were writing the Affordable Care Act.
The Texas law scrambles the political alignment of some stakeholders. The American Tort Reform Association, which hates lawsuits, and the American Association for Justice, which represents trial lawyers, have not taken any positions on the law, and both declined to comment on Thursday.
But the American Medical Association, which supports medical liability reform, blasted the anti-abortion law.
“This significant overreach not only bans virtually all abortions in the state, but it interferes in the patient-physician relationship and places bounties on physicians and health care workers simply for delivering care,” AMA President Gerald Harmon said Wednesday. “Opening the door to third-party litigation against physicians severely compromises patient access to safe clinical care.”
Third-party litigation can target doctors, nurses, or even someone who “abets the performance or inducement of an abortion … regardless of whether the person knew or should have known that the abortion would be performed,” according to the text of the law. The law bans abortions as soon as a physician can detect a fetal heartbeat, which is usually within six weeks of a pregnancy and sometimes even before the person realizes they’re pregnant.
By deputizing private citizens to enforce the ban through lawsuits instead of using criminal penalties, Texas lawmakers managed to dodge a court injunction that would’ve stopped the law from taking effect. Other states could soon enact similar laws.
The mere threat of lawsuits is already shutting down abortion access in the state, as clinics started turning patients away before the law took effect.
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